Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.

In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.

Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”

The case involved an automobile accident and the disputed matter at hand was whether plaintiff had sustained a permanent back injury under the verbal threshold provision in the Automobile Insurance Cost Reduction Act, N.J.S.A. § 39:6A-1.1 , et seq.

At trial, the defense expert witness testified that his examination and analysis of a CT scan revealed no permanent back injury. On cross-examination, the plaintiff’s counsel attempted to ask the witness about the report of a non-testifying radiologist who had concluded that the CT scan showed a lumbar disc bulge.

The trial judge, James Savio, precluded such questioning on hearsay grounds, advising that “You’re not going to backdoor the radiologist’s opinion in this case [and h]e’s not here to testify.” During closing argument, the plaintiff’s counsel again referenced the radiologist’s report, but the Judge instructed the jury to “disregard anything about the radiologist’s opinion.” After a jury verdict for the defense, the plaintiff appealed.

On appeal, the Appellate Division agreed that the report of the non-testifying radiologist was hearsay but noted that the report fit the business record exception under N.J.R.E. 803(c)(6). Admissibility under the business record exception, however, is “subject to Rule 808.” Rule 808, which has no Federal Rule counterpart, states:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

[N.J.R.E. 808.]

In other words, prior to admitting an expert opinion contained within a business record, the trial judge must find that the totality of the circumstances tend to establish its trustworthiness.

Typically, New Jersey courts have admitted “routine” findings of experts contained within medical records that otherwise satisfy the business record exception but have excluded “diagnoses of complex medical conditions” within such records. SeeState v. Matulewicz, 101 N.J. 27, 32 n. 1 (1985). The Appellate Division emphasized that Rule 808 posed “significant hurdles” for admitting expert opinion contained within a business record if the witness is not testifying at trial.

If the requirements of Rule 808 are met and a testifying expert has reasonably relied upon the non-testifying expert’s opinions, then Rule 703 permits the testifying expert to refer to the non-testify expert’s opinions while explaining his or her opinions in court. N.J.R.E. 703. “However, this pathway should not be used as a ‘subterfuge to allow an expert to bolster the expert testimony by reference to other opinions of experts not testifying.’” (quoting Richard J. Biunno, Harvey Weissbard & Alan L. Zegas, Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 703 (2014)). Rule 703 does not allow a testifying expert to introduce an out-of-court expert’s report for its truth when the report is critical to the primary issues in the case and when the opposing party objects. Agha v. Kelly, 198 N.J. 50, 67 (2009). A testifying expert may not function as a conduit for the substantive admission of inadmissible hearsay. Id. at 63; see alsoBrun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006) (holding that an MRI report cannot be “bootstrapped” into evidence through the testimony of a testifying chiropractor).

The Appellate Division also reinforced the risk of prejudice and confusion created by allowing a testifying expert to introduce a non-testifying expert’s report because it would deprive the opposing party of the ability to cross-examine the author of the report and also has a highly likelihood for confusing the jury. Thus, even when a testifying expert is permitted to reference the report of a non-testifying expert to explain the basis of his or her own opinion, the trial judge should instruct the jury regarding its limited use. Agha, 198 N.J. at 67.

Finally, on appeal, the plaintiff argued that he should have been permitted to use the non-testifying radiologist’s report to cross-examine the defense’s expert witness because the testifying expert had failed to consider the report when forming his opinions. Relying on Rule 403, the Appellate Division found that when an absent expert’s opinions are not evidence, “there is a significant danger that the jurors will misuse that proof substantively in spite of a limiting instruction.”

Ultimately, the Appellate Division explained that “[t]he conduit prohibition . . . cannot be circumvented in the guise of questions asking about the ‘consistency’ or ‘inconsistency’ of a testifying expert’s own opinions with the hearsay opinions of an expert who does not testify at trial.” Allowing such testimony would be tantamount to provide the jury with “what is essentially the ‘net opinion’ of the non-testifying radiologist, without being informed of the ‘why and wherefores’ that support the radiologist’s consistent finding.”